On February 27, 2013, the Supreme Court heard oral argument in the case of John Doe v. Brandon Bruner, 2012-0556. The issue is whether and when a litigant may use a pseudonym in civil litigation.

Case Background

Plaintiff John Doe filed this lawsuit alleging that Brandon Bruner, a fellow student at Wilmington College, sexually assaulted and molested Doe on several occasions on campus. Both were college freshmen at the time. In filing his complaint, Doe used a pseudonym to assert claims of assault and battery, and intentional infliction of emotional distress. While Bruner did not challenge Doe’s use of a pseudonym, the magistrate sua sponte requested briefing on this issue, and denied Doe’s request to proceed under a pseudonym.

The trial court affirmed the magistrate’s order requiring Doe to amend the title of the action to include his true name.

The Twelfth District Court of Appeals affirmed, finding no abuse of discretion in the trial court’s ruling. One judge concurred in judgment only, writing separately to propose different factors to make this decision than those adopted by the majority. Read the complete analysis of the appellate decision and the preview of this case here.

Doe’s Argument

Doe’s lawyer argued that these kinds of lawsuits nationwide, particularly in the last decade, have made things safer for children by increasing public awareness, educating organizations about prevention of abuse, and exposing perpetrators who were otherwise active in the community. He also noted favorable changes in statutes of limitations (made much longer, either by judicial decision or legislative action.) He noted that the vast majority of these cases have been filed pseudonymously, and to hold otherwise would be to lock the courthouse doors to this subset of extremely vulnerable plaintiffs. He noted that if a plaintiff worries about being identified,that person won’t file. He asked the Court to clarify the circumstances under which a civil litigant may proceed under a pseudonym. He asked the Court in particular to consider adopting the six factors set forth by the concurring judge in the appellate decision.

Pertinent Rules

Civ. R. 10. Form of Pleadings

(A) Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the case number, and a designation as in Rule 7(A). In the complaint the title of the action shall include the names and addresses of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

Superintendence Rule 45

RULE 45. Court Records – Public Access.

(A) Presumption of public access

Court records are presumed open to public access.

What Was On Their Minds

Bruner filed no memorandum or brief in this case, so only Doe’s lawyer participated at oral argument. Lest you think this makes things a walk in the park, it doesn’t. Sometimes it’s easier to have an opponent to argue against.

How Would This Actually Work?

If the Court allows a John Doe filing, will the proceedings still be open to the public, Chief Justice O’Connor asked immediately.

Would there be any “stacking of the deck” against the defendant if the plaintiff is allowed to proceed to the jury anonymously, asked Justice Lanzinger?

If the Court were to agree that the complaint could be a John Doe filing, would that party still have to appear and be present in an open proceeding, asked Justice O’Donnell?

Civil Rule 10

If the Court were to adopt the plaintiff’s proposed rule, would that require a change to Civil Rule 10, asked Justice O’Donnell?

Privacy versus Openness

Would counsel concede there is a balancing question here—doesn’t the public have the right to know who is filing suit, asked Justice O’Neill? (counsel did so concede, wisely.)

Could this type of filing be allowed in other types of proceedings, such as divorces, asked Justice Lanzinger?

In the key exchange of the day, Justice Lanzinger commented that “we are talking about potentially shielding the name of a party in litigation that is brought before the courts in a public forum.” Would the rule only apply in sex abuse cases? Financial embarrassment wouldn’t qualify? Doe’s counsel (foolishly, in my opinion) began to suggest other areas that this could apply, namely to other crime victims, victims of “heinous torts” such as identity theft and “negligent security” (what’s that, asked the Chief?) To which Justice Lanzinger commented, “wouldn’t any crime victim be embarrassed to bring a civil suit? I don’t see the limitation here.” (answer- “I’m here for sexual assault cases but I don’t want to limit it.”)

Then Justice Pfeifer jumped in, and asked what would happen if famous people wanted to use John Doe filings for their divorces, since they hate that kind of publicity– wouldn’t some judges accommodate that? If the Court were writing a common law rule, should it exclude divorce? (counsel wisely ducked that one.)

The Factors to be Weighed

Did the trial court ever refer to Superintendence Rule 45, asked Justice Lanzinger? (answer:no.) Later she asked if this was a matter for the legislature (no, said counsel, it is all common law.)

Which set of federal precedents should the Court adopt, asked Justice O’Donnell?

Could the lower courts use the factors that determine if a criminal case should be sealed to decide whether to allow a pseudonymous filing, asked Justice Kennedy? Barely were those words out of her mouth when the Chief jumped in and noted that Doe wasn’t interested in the sealing of the case. Ouch!

The Interplay Between Civil and Criminal Cases

In one of the most interesting questions of the day, Justice Lanzinger asked, “are you assuming this would always occur after a conviction? You used the term victim, but we have alleged victims until there is a conviction—after that we have a judgment entry of conviction—could you comment on that?”

The answer was that many of these civil suits are filed precisely because the evidence cannot meet the criminal burden of proof.

The Particular Problems with this Case

Justice French expressed her concern with the lack of a transcript in the case, and thus no ability to decide if the magistrate weighed the appropriate factors. Counsel explained there was no evidentiary hearing in the case, only a request for briefing on the pseudonym filing question. Justice French followed up asking if the best that could happen in this case would be to agree with Doe’s proposed factors, and send the case back to the trial court to weigh and decide whether his client could be protected? (answer:yes, and there would have to be an evidentiary hearing to do so).

Did the defendant participate in all the lower court proceedings asked Chief Justice O’Connor. (yes). Was he represented by counsel? (No, said Doe’s lawyer, and when he suggested that he had gotten information from Bruner’s deposition that might help the prosecution bring a criminal case, Justice Pfeifer immediately asked whether that might not present a problem? No Miranda warnings, Justice O’Donnell chimed in.)

How it Looks From the Bleachers

To Professor Bettman

Student contributor Elizabeth Chesnut and I agree that the Court seemed sympathetic to the idea of allowing pseudonymous filings for sex abuse victims—probably more so when the abuse was to young children. Judge Ringland’s factors in concurrence in the Twelfth District’s opinion seemed very well thought out. But I felt Doe’s counsel was skating on very thin ice when he talked about extending this rule beyond sex abuse victims—and even that category is going to have to be carefully defined. Justice Lanzinger was the most concerned about the problems this could present to the defendants—especially in her comments noting that without an antecedent criminal conviction, who is to say at the time of filing that a John or Jane Doe plaintiff is a sex abuse victim? And the Court has always been big on openness. So any rule (and a change to Civ.R.10 may well be necessary, which would take awhile) will definitely be very narrowly tailored.

There is no way to know the outcome of this particular case, because if the Court does use factors other than those suggested in the majority, the case must go back for a full evidentiary hearing, as counsel conceded to Justice French.

To Student Contributor Elizabeth Chesnut

The Supreme Court seems open to allowing certain classes of litigants to proceed in civil cases under pseudonyms, but the main problems seem to be which federal circuits provide the proper guidance and to which classes of litigants such a ruling would be extended. Justices Lanzinger and Pfeifer both showed concern that divorce cases would be allowed to proceed pseudonymously, but Chief Justice O’Connor seemed confident that any ruling on the subject could be tailored to sexual assault cases. If the Court decides to find in favor of John Doe on this issue, the decision will certainly be narrowly crafted.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.